Effective: November 1, 2006

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Article 5. Lawyer Discipline and Disability

Rule 114-501. Purpose, authority, scope and structure of lawyer disciplinary and

disability proceedings.

(a) The purpose of lawyer disciplinary and disability proceedings is to ensure and

maintain the high standard of professional conduct required of those who undertake the

discharge of professional responsibilities as lawyers and to protect the public and the

administration of justice from those who have demonstrated by their conduct that they

are unable or unlikely to properly discharge their professional responsibilities.

(b) Under Article VIII, Section 4 of the Constitution of Utah, the Utah Supreme Court

has exclusive authority within the State of Utah to adopt and enforce rules governing the

practice of law, including admission to practice law and the conduct and discipline of

persons admitted to practice law.

proceedings described hereinthis article and Article 6, Standards for Imposing Lawyer

Sanctions. Formal disciplinary and disability proceedings are civil in nature. These rules

shall be construed so as to achieve substantial justice and fairness in disciplinary

matters with dispatch and at the least expense to all concerned parties.

(d) The interests of the public, the courts, and the legal profession all require that

disciplinary proceedings at all levels be undertaken and construed to secure the just

and speedy resolution of every complaint.

Rule 214-502. Definitions.

As used in these rulesthis article:

(a) "Bar" means the Utah State Bar;

(b) “Board of Commissioners" means the Board of Commissioners of the Utah State

Bar;

Court;

(d) "Ccomplainant" means the person who files an informal complaint or the Office of

Professional Conduct ("OPC") where when the OPC determines to open an

investigation based on information it has received;

Effective: November 1, 2006

(e) "OPC counsel" means Ssenior Ccounsel and any assistant counsel employed to

assist Ssenior Ccounsel;. "Senior Counsel" means the lawyer appointed by the Board of

Commissioners to lead and supervise the OPC;

(f) "Fformal complaint" means a complaint filed in the district court alleging

misconduct by a lawyer or seeking the transfer of a lawyer to disability status;

(g) "Iinformal complaint" means any written, notarized allegation of misconduct by or

incapacity of a lawyer which also contains a verification attesting to the accuracy of the

information provided;

(h) "NOIC" means Notice of Informal Complaint sent to the Rrespondent after a

preliminary investigation and approval by Senior Counsel for referral to a Screening

Panel hearing;

(i) “OPC" means the Bar’s Office of Professional Conduct;

(j) "Rrespondent" means a lawyer subject to the disciplinary jurisdiction of the Utah

Supreme Court against whom an informal or formal complaint has been filed;

(k) "Rules of Professional Conduct" means the Utah Rules of Professional Conduct

(including the accompanying comments) initially adopted by the Utah Supreme Court in

1988, as amended from time to time;

(l) “screening panel” means members of the Committee who participate in hearings

and make determinations under Rule 14-503;

(m) “senior counsel” means the lawyer appointed by the Board to manage the OPC;

(ln) “Supreme Court” means the Utah Supreme Court.

Rule 314-503. Ethics and dDiscipline cCommittee.

(a) Composition. The Committee shall be appointed by the Supreme Court. The

Committee shall consist of eight (8) public members, and twenty-six (26) members of

the Bar who have demonstrated a high standard of professional conduct. All

appointments shall be for a term of three (3) years. The Supreme Court shall designate

one (1) lawyer member as Committee chair and one (1) lawyer member as Committee

vice chair. Committee members shall not serve more than two (2) consecutive terms.

(b) Committee chair. The Committee chair shall supervise the Committee and

screening panels. The Committee chair’s is responsibility responsible shall be to

Effective: November 1, 2006

maintain an adequate check on the work of the screening panels to ensure that matters

move forward expeditiously, to determine that screening panels have a uniform basis for

the judgments rendered, and to provide the screening panels with information

concerning ethics and judicial decisions necessary to their activities. The chair shall

make recommendations to the Supreme Court concerning appointments to the

screening panels and reports concerning the activities of the screening panels and the

overall work of the Committee.

or resignation. The Committee chair may call upon the Committee vice chair to assist in

any of the Committee chair’s duties.

(d) Screening panels, quorums. The Committee members, except for the Committee

chair and Committee vice chair, shall be divided into four (4) screening panel sections of

six (6) members of the Bar and two (2) public members. The Supreme Court shall name

a screening panel chair from each screening panel, who shall preside over the

screening panel. In the absence of the screening panel chair, a screening panel vice

chair designated by the screening panel shall preside. Two members of the Bar plus

one (1) public member shall constitute a quorum of a screening panel. The concurrence

of a majority of those members present and voting at any proceeding shall be required

for a screening panel determination. In instances when If an even number of screening

panel members participate in a proceeding, the chair or vice chair shall not vote unless

necessary to break a tie. The chair or vice chair shall, however, fully participate in the

proceeding. Each screening panel shall meet as is necessary to effectively and

promptly carry out its duties. The entire Committee may be convened at such other

times, on the call of by the Committee chair, as necessary to effectively and promptly

carry out its duties.

(e) Resignations, alternates. If a Committee member does not attend three (3)

consecutive scheduled screening panel hearings, that Committee member shall

automatically be deemed to have resigned his or her Committee appointment. Members

of any screening panel may serve as alternate members of on different screening

Effective: November 1, 2006

panels. The Committee chair and the Committee vice chair may serve as alternate

members ofon all screening panels.

(f) Responsibilities. Informal complaints shall be randomly assigned to screening

panels. The screening panels may, and as to all informal complaints referred by OPC

counsel, which shall be randomly assigned, shall, review, investigate, and hear all

informal complaints charging unethical and/or unprofessional conduct against members

of the Bar. After such review, investigation, hearing and analysis, the screening panels

shall determine the action to be taken on any informal complaint which, based upon the

facts of the particular case, is most consistent with the public interest and the Rules of

Professional Conduct.

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(g) Subpoena. Any party or the a screening panel, for good cause shown, may

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petition under seal the district court for issuance of a subpoena, subpoena duces tecum

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or any order allowing discovery prior to the filing of a formal complaint. Except for good

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cause shown, all petitions under this rule shall require a five -day written notice to the

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opposing party prior to the issuance of an appropriate order of subpoena.

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(g)(1) Enforcement of subpoena. A district court in the district in which the

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attendance or production is required may, upon proper application, enforce the

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attendance and testimony of any witnesses and the production of any documents

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subpoenaed.

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(g)(2) Quashing subpoena. Any attack on the validity of a subpoena so issued shall

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be heard and determined by the Committee chair or by the court wherein enforcement

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of the subpoena is being sought. Any resulting order is not appealable prior to the entry

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of a final order in the proceeding.

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(g)(3) Witnesses and fees. Subpoena fees, witness fees, and mileage shall be

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reimbursed in the amounts provided under Rule 45 of the Utah Rules of Civil Procedure.

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(h)(1) Committee and OPC as screening panel secretary. OPC counsel shall be the

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secretary to the Committee and is charged with the responsibility of the administrative

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affairs of the Committee, the handling of the screening panel calendars, giving notice to

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screening panel members and members of the Bar whose attendance is requested,

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notifying those who have filed informal complaints of the times and dates their matters

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will be heard, and otherwise performing or providing the secretarial and administrative

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functions of the Committee and screening panels. Except as otherwise provided in

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these rulesthis article, whenever OPC counsel may be present before a screening panel

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during a hearing, the respondent may also be present.

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(h)(2) OPC counsel shall within three (3) months after the filing of an informal

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complaint of unprofessional or unethical conduct of a respondent, advise the party

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making the informal complaint concerning the initial consideration of the informal

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complaint, and shall promptly advise such party in writing of the subsequent disposition

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of the informal complaint and the reasons therefor.

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(i) Annual report. Senior Ccounsel shall prepare and submit an annual report to the

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Supreme Court and the Board of Commissioners encompassing the scope and nature

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of the Committee work. The report shall be submitted on or about August 1 of each year

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for the preceding fiscal year and shall set forth the number of disciplinary cases

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investigated, the number brought before the Committee, formal complaints filed,

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dispositions, cases dismissed, informal ethics opinions issued, diversionary dispositions

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and such other information as may be helpful to the Supreme Court in comprehending

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the operations of the OPC as well as the efficiency and effectiveness of the disciplinary

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system. Such report may contain Committee recommendations for rule amendments or

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changes in Committee procedure. The chair and Ssenior Ccounsel shall annually

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consult with the Board of Commissioners and the Supreme Court regarding the level of

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activity and general standing of disciplinary matters and procedures.

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Rule 414-504. OPC counsel.

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(a) Appointment and qualifications. The Board of Commissioners shall appoint a

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lawyer admitted to practice in Utah to serve as Ssenior Ccounsel. Neither the Ssenior

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Ccounsel nor any full-time assistant counsel shall engage in the private practice of law

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for payment.

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(b) Powers and duties. The Ssenior Ccounsel shall perform all prosecutorial

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functions and have the following powers and duties, which may be delegated to other

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staff:

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(b)(1) Sscreen all information coming to the attention of the OPC to determine

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whether it is within the jurisdiction of the OPC in that it relates to misconduct by a lawyer

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or to the incapacity of a lawyer;

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(b)(2) Iinvestigate all information coming to the attention of the OPC which, if true,

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would be grounds for discipline or transfer to disability status, and investigate all facts

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pertaining to petitions for reinstatement or readmission;

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(b)(3) Ffor each matter not covered in Rule 1014-510, brought to the attention of the

OPC:

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(b)(3)(A) dismiss;

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(b)(3)(B) decline to prosecute;

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(b)(3)(C) refer non-frivolous and substantial informal complaints to the Committee for

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hearing; or

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(b)(3)(D) petition to the district court for transfer to disability status;

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(b)(4) Pprosecute before the screening panels, the district courts, the Supreme

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Court, and any other courts, including but not limited to, any court of the United States,

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all disciplinary cases and proceedings for transfer to or from disability status;

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(b)(5) Aattend the Character and Fitness Committee proceedings in all cases for

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readmission, and represent the OPC before the district courts, Supreme Court, and any

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other courts including, but not limited to, any court of the United States in all cases for

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reinstatement and readmission;

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(b)(6) Eemploy or appoint and supervise staff needed for the performance of

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prosecutorial functions and delegate such responsibilities as may be reasonably

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necessary to perform prosecutorial functions, including supervising attorneys who

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provide pro bono services to the Bar, by supervising the practice of respondents who

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have been placed on probation;

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(b)(7) Nnotify promptly the complainant, the respondent, and any counsel of record

of the disposition of each matter;

(b)(8) Nnotify each jurisdiction in which a respondent is admitted of a transfer to

disability status, or any public discipline imposed in this state Utah;

Effective: November 1, 2006

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(b)(9) Sseek reciprocal discipline where appropriate when informed of any public

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discipline imposed by another court, another jurisdiction, or a regulatory body having

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disciplinary jurisdiction;

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(b)(10) Fforward a certified copy of the judgment of conviction to the disciplinary

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agency in each jurisdiction in which a lawyer is admitted when the lawyer is convicted of

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a crime in this state Utah which reflects adversely on the lawyer's honesty,

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trustworthiness or fitness as a lawyer;

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(b)(11) Mmaintain permanent records of discipline and disability matters, subject to

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any expungement requirements, and compile statistics to aid in the administration of the

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system, including but not limited to, a log of all informal complaints received,

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investigative files, statistical summaries of rules violated and dispositions, any

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transcripts of proceedings, and other records as the Supreme Court requires to be

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maintained.;

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(b)(12) Eexpunge after seven (7) years all records or other evidence of the existence

of any informal complaint terminated by dismissal or a declination to prosecute:;

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(b)(12)(A) Notice to respondent. If the respondent was contacted by the OPC

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concerning the informal complaint, or the OPC otherwise knows that the respondent is

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aware of the existence of the informal complaint, the respondent shall be given prompt

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written notice of the expungement.

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(b)(12)(B) Effect of expungement. After a file has been expunged, any OPC

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response to an inquiry requiring a reference to the matter shall state that there is no

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record of such matter. The respondent may answer any inquiry requiring a reference to

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an expunged matter by stating that no informal complaint was made.

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(b)(13) Pprovide informal guidance concerning professional conduct to members of

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the Bar requesting guidance, participate in seminars which will promote ethical conduct

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by the Bar, formulate diversionary programs, monitor probations, and disseminate

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disciplinary results to the Bar and the public through the Utah Bar Journal and otherwise

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as appropriate, maintaining the confidentiality of respondents subject to private

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discipline.; and

Effective: November 1, 2006

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(b)(14) along with the executive director Aannually formulate the budget for the OPC

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and submit the budget to the Board of Commissioners for approval. OPC counsel may

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petition the Supreme Court for review of modifications to the budget imposed by the

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Board of Commissioners.

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regarding successive government and private employment (Rule 1.11 of the Rules of

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Professional Conduct), a former OPC counsel shall not personally represent a lawyer

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following completion of the OPC counsel’s service in any proceeding as provided in

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these Rrules which former OPC counsel investigated or prosecuted during his or her

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employment by OPC.

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Rule 514-505. Expenses.

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(a) The salaries of OPC counsel and staff, their expenses, administrative costs, and

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the expenses of the members of the screening panels, shall be paid by the Bar.

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(b) The budget prepared by the executive director and Ssenior Ccounsel pursuant to

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Rule 4(b)(14)14-504(b)(14) shall reasonably ensure the accomplishment of the goals of

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the disciplinary system, the professional development of the staff, and salaries that will

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encourage continued employment of competent professionals and support staff and will

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provide compensation approximately equivalent to current salaries in comparable

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service.

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Rule 614-506. Jurisdiction.

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(a) Persons practicing law. The persons subject to the disciplinary jurisdiction of the

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Supreme Court and the OPC include any lawyer admitted to practice law in this state

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Utah, any lawyer admitted but currently not properly licensed to practice in this state

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Utah, any formerly admitted lawyer with respect to acts committed while admitted to

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practice in this state Utah or with respect to acts subsequent thereto which amount to

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the practice of law or constitute a violation of any rule promulgated, adopted, or

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approved by the Supreme Court or any other disciplinary authority where the attorney

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was licensed to practice or was practicing law at the time of the alleged violation, any

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lawyer specially admitted by a court of this state Utah for a particular proceeding, and

Effective: November 1, 2006

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any other person not admitted in this state Utah who practices law or who renders or

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offers to render any legal services in this state Utah.

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(b) Incumbent and sitting judges. Incumbent and sitting judges are subject to the

jurisdiction of OPC only for conduct that occurred prior to the taking of office.

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to the jurisdiction of the Supreme Court not only for conduct as a lawyer but also for

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misconduct that occurred while the lawyer was a judge and would have been grounds

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for lawyer discipline, provided that the misconduct was not the subject of a judicial

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disciplinary proceeding as to which there has been a final determination by the

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Supreme Court.

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(d) Part-time judges. Part-time judges, while in office, are subject to lawyer

disciplinary and disability proceedings for acts outside their judicial capacity.

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Rule 714-507. Roster of lawyers and current record information.

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The Bar shall collect, maintain and have ready access to current information relating

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to members of the Bar including:

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(a) full name;

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(b) date of birth;

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addresses, and current telephone numbers for law office and residence, except that full-

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time judges are exempt from providing residential addresses and telephone numbers;

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(d) date of admission in the state;

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(e) date of any transfer to or from inactive status;

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(f) all specialties in which certified;

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(g) other jurisdictions in which the lawyer is admitted and date of admission; and

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(h) nature, date, and place of any discipline imposed and any reinstatements.

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Rule 814-508. Periodic Aassessment of Llawyers.

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(a) Annual licensing fee. Every lawyer admitted to practice in this state Utah shall

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pay to the Bar on or before July 1 of each year an annual license fee for each fiscal year

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to be fixed by the Board of Commissioners from time to time and approved by the

Effective: November 1, 2006

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Supreme Court. The fee shall be sufficient to pay the costs of disciplinary administration

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and enforcement under these rules this article.

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(b) Suspension for non-payment of licensing fee Failure to renew annual license.

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Failure to pay the annual licensing fee or provide the required annual licensing

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information shall result in administrative suspension. Any attorney lawyer who shall

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practices law while suspended for non-payment of the license fee after failure to renew

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his or her license violates the Rules of Professional Conduct and may be disciplined for

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practicing while suspended for non-payment of fees. The Eexecutive Ddirector of the

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Bar or his or her designee shall give notice of such removal from the rolls to such non-

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complying member at the designated mailing address on record at the Bar, and to the

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Utah Supreme Court and to the judges of the district courts state and federal courts in

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Utah. The non-complying member may apply in writing for re-enrollment by tendering

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the license fees and/or the required information and an additional one hundred dollars

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($100) delinquent fee. Upon receiving the same, the Bar shall accept it and order re-

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enrollment and so notify the courts. Re-enrollment based on suspension for non-

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payment failure to renew does not negate any orders of discipline.

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Rule 914-509. Grounds for discipline.

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It shall be a ground for discipline for a lawyer to:

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(a) violate the Rules of Professional Conduct;

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(b) willfully violate a valid order of a court or a screening panel imposing discipline;

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(d) fail to comply with the requirements of Rule 14-526(e); or

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(de) fail to notify the OPC of public discipline in another jurisdiction in accordance

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with Rule 22(a)14-522(a).

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Rule 1014-510. Prosecution and appeals.

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(a) Informal complaint of unprofessional conduct.

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(a)(1) Filing. A disciplinary proceeding may be initiated against any member of the

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Bar by any person, OPC counsel or the Committee, by filing with the Bar, in writing, an

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informal complaint in ordinary, plain and concise language setting forth the acts or

Effective: November 1, 2006

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omissions claimed to constitute unprofessional conduct. Upon filing, an informal

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complaint shall be processed in accordance with these rules this article.

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(a)(2) Form of informal complaint. The informal complaint need not be in any

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particular form or style and may be by letter or other informal writing, although a form

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may be provided by the OPC to standardize the informal complaint format. It is

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unnecessary that the informal complaint recite disciplinary rules, ethical canons or a

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prayer requesting specific disciplinary action. The informal complaint shall be signed by

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the complainant and shall set forth the complainant's address, and may list the names

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and addresses of other witnesses. The informal complaint shall be notarized and

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contain a verification attesting to the accuracy of the information contained in the

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complaint. In accordance with Rule 4(b) 14-504(b), complaints filed by OPC are not

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required to contain a verification. The substance of the informal complaint shall prevail

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over the form.

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(a)(3) Initial investigation. Upon the filing of an informal complaint, OPC counsel

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shall conduct a preliminary investigation to ascertain whether the informal complaint is

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sufficiently clear as to its allegations. If it is not, OPC counsel shall seek additional facts

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from the complainant,; which additional facts shall also be submitted in writing and

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signed by the complainant.

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(a)(4) Notice of informal complaint. Upon completion of the preliminary investigation,

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OPC counsel shall determine whether the informal complaint can be resolved in the

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public interest, the respondent's interest and the complainant's interest. OPC counsel

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and/or the screening panel may use their efforts to resolve the informal complaint. If the

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informal complaint cannot be so resolved or if it sets forth facts which, by their very

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nature, should be brought before the screening panel, or if good cause otherwise exists

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to bring the matter before the screening panel, OPC counsel shall cause to be served a

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Notice of Informal ComplaintNOIC by regular mail upon the respondent at the address

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reflected in the records of the Bar. The notice NOIC shall have attached a true copy of

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the signed informal complaint against the respondent and shall identify with particularity

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the possible violation(s) of the Rules of Professional Conduct raised by the informal

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complaint as preliminarily determined by OPC counsel.

Effective: November 1, 2006

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(a)(5) Answer to informal complaint. Within twenty (20) days after service of the

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Notice of Informal Complaint NOIC on the respondent, the respondent shall file with

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OPC counsel a written and signed answer setting forth in full an explanation of the facts

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surrounding the informal complaint, together with all defenses and responses to the

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claims of possible misconduct. For good cause shown, OPC counsel may extend the

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time for the filing of an answer by the respondent not to exceed an additional thirty (30)

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days. Upon the answer having been filed or in the event that if the respondent fails to

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respond, OPC counsel shall refer the case to a screening panel for investigation,

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consideration and determination. OPC counsel shall forward a copy of the answer to the

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complainant.

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(a)(6) Dismissal of informal complaint. An informal complaint which, upon

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consideration of all factors, is determined by OPC counsel to be frivolous, unintelligible,

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barred by the statute of limitations, more adequately addressed in another forum,

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unsupported by fact or which does not raise probable cause of any unprofessional

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conduct, or which OPC declines to prosecute may be dismissed by OPC counsel

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without hearing by a screening panel. OPC counsel shall notify the complainant of such

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dismissal stating the reasons therefor. The complainant may appeal a dismissal by OPC

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counsel to the Committee chair within fifteen (15) days after notification of the dismissal

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is mailed. Upon appeal, the Committee chair shall conduct a de novo review of the file,

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and either affirm the dismissal or require OPC counsel to prepare a NOIC, and set the

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matter for hearing by a screening panel. In the event of the chair's recusal, the chair

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shall appoint the vice chair or one (1) of the screening panel chairs to review and

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determine the appeal.

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(b) Proceedings before cCommittee and screening panels.

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(b)(1) Review and investigation. A screening panel shall review all informal

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complaints referred to it by OPC counsel, including all the facts developed by the

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informal complaint, answer, investigation and hearing, and the recommendations of

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OPC counsel.

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(b)(2) Respondent's appearance. Before any action is taken which may result in the

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recommendation of an admonition or the filing of a formal complaint, the screening

Effective: November 1, 2006

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panel shall, upon at least fourteen (14) days notice, afford the respondent an

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opportunity to appear before the screening panel and testify under oath, together with

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any witnesses called by the respondent, and to present an oral argument with respect to

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the informal complaint. All testimony shall be recorded and preserved so long as

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proceedings are pending, and in any event, not less than six (6) months following the

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hearing. A written brief may also be submitted to the screening panel by the respondent.

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The brief shall not exceed five (5) pages in length unless permission for enlargement is

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extended by the chair or the chair's delegate for good cause shown. A copy of the brief

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shall be forwarded by OPC counsel to the complainant.

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(b)(3) Complainant's appearance. A complainant shall have the right to appear

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before the screening panel personally and testify under oath, together with any

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witnesses called by the complainant, with respect to the informal complaint or in

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opposition to the matters presented by the respondent. The complainant may be

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represented by counsel or some other representative.

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(b)(4) Right to hear evidence. The complainant and the respondent shall each have

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the right to be present during the presentation of the evidence unless excluded by the

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screening panel chair for good cause shown.

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(b)(5) Screening panel determination. Upon review of all the facts developed by the

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informal complaint, answer, investigation and hearing, the screening panel, in behalf of

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the Committee, shall make one of the following determinations:

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(b)(5)(A) Tthat the informal complaint does not raise facts in which there is probable

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cause to believe that the respondent was engaged in unprofessional conduct, in which

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case, the informal complaint shall be dismissed. OPC counsel shall promptly give notice

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of such dismissal by regular mail to the complainant and the respondent.; or

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(b)(5)(B) Tthat a letter of caution may be issued. The letter shall be signed by OPC

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counsel or the screening panel chair and shall serve as a guide for the future conduct of

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the respondent. Thereupon, the informal complaint shall be dismissed, with the

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complainant and the respondent being notified of the dismissal. The complainant shall

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also be confidentially notified of the caution.; or

Effective: November 1, 2006

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(b)(5)(C) Tthat a dismissal may be conditioned upon the performance by the

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respondent of specified conduct which the Committee determines to be warranted by

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the facts and the Rules of Professional Conduct.; or

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(b)(5)(D) Tthat the informal complaint be referred to the Committee chair with an

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accompanying screening panel recommendation that the respondent be admonished.

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Such screening panel recommendation shall be in writing and shall state the substance

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and nature of the informal complaint and defenses and the basis upon which the

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screening panel has concluded, by a preponderance of the evidence, that the

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respondent should be admonished. A copy of such screening panel recommendation

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shall be served upon the respondent prior to delivery of the recommendation to the

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Committee chair. The Committee chair shall enter an order admonishing the respondent

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if no exception has been filed within ten (10) days of notice of the recommendation

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being provided to the respondent.; or

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(b)(5)(E) Tthat the informal complaint be referred to the Committee chair with an

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accompanying screening panel recommendation that the respondent receive a public

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reprimand. Such screening panel recommendation shall be in writing and shall state the

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substance and nature of the informal complaint and defenses and the basis upon which

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the screening panel has concluded, by a preponderance of the evidence, that the

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respondent should receive a public reprimand. A copy of such screening panel

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recommendation shall be served upon the respondent prior to the delivery of the

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recommendation to the Committee chair. The Committee chair shall enter an order

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publicly reprimanding the respondent if no exception has been filed within ten (10) days

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of notice of the recommendation being provided to the respondent.; or

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(b)(5)(F) Tthat a formal complaint be filed against the respondent.

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(b)(6) Determination of appropriate sanction. In determining an appropriate sanction

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and only after having found unethical conduct, the screening panel may consider any

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admonitions or greater discipline imposed upon the respondent within the five (5) years

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immediately preceding the alleged offense.

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(b)(7) Continuance of disciplinary proceedings. A disciplinary proceeding may be

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held in abeyance by the Committee prior to the filing of a formal complaint when the

Effective: November 1, 2006

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allegations or the informal complaint contain matters of substantial similarity to the

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material allegations of pending criminal or civil litigation in which the respondent is

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involved.

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notice of the recommendation of an admonition or public reprimand to the Committee

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chair, the respondent may file with the Committee chair an exception to the

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recommendation and may also, if desired, request a hearing. If a request for a hearing

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is made, the Committee chair, or a screening panel chair designated by the Committee

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chair, shall proceed to hear the matter in an expeditious manner, with OPC counsel and

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the respondent having the opportunity to be present. The complainant’s testimony may

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be read into the record. The complainant need not appear personally unless called by

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the respondent as an adverse witness for purposes of cross- examination. The

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respondent shall have the burden of proof of showing that the recommendation is

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unreasonable, unsupported by substantial evidence, arbitrary, capricious and otherwise

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clearly erroneous.

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Rule 1114-511. Proceedings subsequent to finding of probable cause.

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(a) Commencement of action. In the event If the screening panel finds probable

430

cause to believe that there are grounds for public discipline and that a formal complaint

431

is merited, OPC counsel shall prepare and file with the district court a formal complaint

432

setting forth in plain and concise language the facts upon which the charge of

433

unprofessional conduct is based and the applicable provisions of the Rules of

434

Professional Conduct. The formal complaint shall be signed by the Committee chair or,

435

in the chair's absence, by the Committee vice chair or a screening panel chair

436

designated by the Committee chair.

437

(b) Venue. The action shall be brought and the trial shall be held in the county in

438

which an alleged offense occurred or in the county where the respondent resides or

439

practices law or last practiced law in Utah; provided, however, that if the respondent is

440

not a resident of Utah and the alleged offense is not committed in Utah, the trial shall be

441

held in a county designated by the Chief Justice of the Supreme Court. The parties may

Effective: November 1, 2006

442

stipulate to a change of venue in accordance with applicable law (currently Utah Code

443

section 78-13-9).

444

445

Matter of the Discipline of (name of respondent and respondent's Bar number),

446

Respondent."

447

(d) Change of judge as a matter of right.

448

(d)(1) Notice of change. The respondent or OPC counsel may, by filing a notice

449

indicating the name of the assigned judge, the date on which the formal complaint was

450

filed, and that a good faith effort has been made to serve all parties, change the judge

451

assigned to the case. The notice shall not specify any reason for the change of judge.

452

The party filing the notice shall send a copy of the notice to the assigned judge and to

453

the presiding judge. The party filing the notice may request reassignment to another

454

district court judge from the same district, which request shall be granted. Under no

455

circumstances shall more than one (1) change of judge be allowed to each party under

456

this rule.

457

(d)(2) Time. Unless extended by the court upon a showing of good cause, the notice

458

must be filed within thirty (30) days after commencement of the action or prior to the

459

notice of trial setting, whichever occurs first. Failure to file a timely notice precludes any

460

change of judge under this rule.

461

(d)(3) Assignment of action. Upon the filing of a notice of change, the assigned judge

462

shall take no further action in the case. The presiding judge shall promptly determine

463

whether the notice is proper and, if so, shall reassign the action. If the presiding judge is

464

also the assigned judge, the clerk shall promptly send the notice to the Chief Justice of

465

the Supreme Court, who shall determine whether the notice is proper and, if so, shall

466

reassign the action.

467

468

(d)(4) Rule 63 and Rule 63A unaffected. This rule does not affect any rights a party

may have pursuant to Rule 63 or Rule 63A of the Utah Rules of Civil Procedure.

469

(e) Actions tried to the bench; findings and conclusions. All actions tried according to

470

these rules this article shall be tried to the bench, and the district court shall enter

Effective: November 1, 2006

471

findings of fact and conclusions of law. Neither masters nor commissioners shall be

472

utilized.

473

(f) Sanctions hearing. Upon a finding of misconduct and as soon as reasonably

474

practicable, but within a target date of not more than thirty (30) days after the district

475

court enters its findings of fact and conclusions of law, it shall hold a hearing to receive

476

relevant evidence in aggravation and mitigation, and shall within five (5) days thereafter,

477

enter an order sanctioning the respondent. Upon reasonable notice to the parties, the

478

court, at its discretion, may determine to hold the sanctions hearing immediately after

479

the misconduct proceeding.

480

(g) Review. Any discipline order by the district court may be reviewed by the

481

Supreme Court through a petition for review pursuant to the Utah Rules of Appellate

482

Procedure.

483

Rule 1214-512. Sanctions.

484

The imposition of sanctions against a respondent who has been found to have

485

engaged in misconduct shall be governed by the Chapter 14, Article 6, Standards for

486

Imposing Lawyer Sanctions.

487

Rule 1314-513. Immunity from civil suits.

488

(a) Participants in proceedings conducted under these rules this article shall be

489

entitled to the same protections for statements made in the course of the proceedings

490

as participants in judicial proceedings. The district courts, Committee members, special

491

counsel appointed pursuant to Rule 17(f)14-517(f), supervising attorneys engaged in

492

pro bono assistance, trustees appointed pursuant to Rule 2714-527, and OPC counsel

493

and staff shall be immune from suit, except as provided in Utah Rules of Civil Procedure

494

65A and 65B, for any conduct committed in the course of their official duties, including

495

the investigatory stage. There is no immunity from civil suit for intentional misconduct.

496

Rule 1414-514. Service.

497

(a) Service of formal complaint or other petition. Service of the formal complaint

498

upon the respondent in any disciplinary proceeding or the petition in any disability

499

proceeding shall be made in accordance with the Utah Rules of Civil Procedure.

Effective: November 1, 2006

500

501

(b) Service of other papers. Service of any other papers or notices required by these

rules this article shall be made in accordance with the Utah Rules of Civil Procedure.

502

Rule 1514-515. Access to disciplinary information.

503

(a) Confidentiality. Prior to the filing of a formal complaint or the issuance of a public

504

reprimand pursuant to Rule 10 14-510 in a discipline matter, the proceeding is

505

confidential, except that the pendency, subject matter, and status of an investigation

506

may be disclosed by OPC counsel if the proceeding is based upon allegations that have

507

been disseminated through the mass media, or include either the conviction of a crime

508

or reciprocal public discipline. The proceeding shall not be deemed confidential to the

509

extent:

510

(a)(1) the respondent has given an express written waiver of confidentiality;

511

(a)(2) there is a need to notify another person or organization, including the Bar’s

512

Client Security Lawyer’s Fund for Client Protection, in order to protect the public, the

513

administration of justice, or the legal profession; or

514

(a)(3) the information is required in a subsequent lawyer sanctions hearing;

515

(b) Public proceedings. Upon the filing of a formal complaint in a discipline matter,

516

the filing of a petition for reinstatement, or the filing of a motion or petition for interim

517

suspension, the proceeding is public, except as provided in paragraph (d) below.

518

519

status are confidential. All orders transferring a respondent to or from disability status

520

are public.

521

(d) Protective order. In order to protect the interest of a complainant, witness, third

522

party, or respondent, the district court may, upon application of any person and for good

523

cause shown, issue a protective order prohibiting the disclosure of specific information

524

and direct that the proceedings be conducted so as to implement the order, including

525

requiring that the hearing be conducted in such a way as to preserve the confidentiality

526

of the information that is the subject of the application.

527

528

(e) Request for nonpublic information. Nonpublic information shall be confidential,

other than as authorized for disclosure under paragraph (a), unless:

Effective: November 1, 2006

529

(e)(1) the request for information is made by the Board of Commissioners, any Bar

530

committee or the Eexecutive Ddirector of the Bar, and is required in the furtherance of

531

their duties; or

(e)(2) the request for information is approved by OPC counsel and there is

532

533

compliance with the provisions of paragraphs (f) and (g) of this rule.

534

(f) Notice to the respondent. Except as provided in paragraph (g), if the Committee

535

decides to provide nonpublic information requested pursuant to paragraph (e), and if the

536

respondent has not signed an express written waiver permitting the party requesting the

537

information to obtain the nonpublic information, the respondent shall be notified in

538

writing at the respondent's last known designated mailing address as shown by Bar

539

records of that information which has been requested and by whom, together with a

540

copy of the information proposed to be released. The notice shall advise the respondent

541

that the information shall be released at the end of twenty-one (21) days following

542

mailing of the notice unless the respondent objects to the disclosure. If the respondent

543

timely objects to the disclosure, the information shall remain confidential unless the

544

requesting party obtains a court order authorizing its release.

545

(g) Release without notice. If an otherwise authorized requesting party as outlined in

546

15paragraph (e) has not obtained an express written waiver from the respondent to

547

obtain nonpublic information, and requests that the information be released without

548

giving notice to the respondent, the requesting party shall certify that:

(g)(1) the request is made in furtherance of an ongoing investigation into misconduct

549

550

by the respondent;

551

(g)(2) the information is essential to that investigation; and

552

(g)(3) disclosure of the existence of the investigation to the respondent would

553

seriously prejudice that investigation.

(h) OPC counsel can disclose nonpublic information without notice to the respondent

554

555

556

557

if:

(h)(1) disclosure is made in furtherance of an ongoing OPC investigation into

misconduct by the respondent; and

Effective: November 1, 2006

558

559

560

561

(h)(2) the information that is sought through disclosure is essential to that

investigation.

(i) Duty of participants. All participants in a proceeding under these Rrules shall

conduct themselves so as to maintain the confidentiality mandated by this Rule.

562

Rule 1614-516. Dissemination of disciplinary information.

563

(a) Notice to disciplinary agencies. The OPC shall transmit notice of public discipline,

564

resignation with discipline pending, transfers to or from disability status, reinstatements,

565

readmissions, and certified copies of judgments of conviction to the disciplinary

566

enforcement agency of every other jurisdiction in which the respondent is admitted, and

567

to the National Discipline Data BankLawyer Regulatory Database maintained by the

568

American Bar Association.

569

(b) Notice to the public. The Eexecutive Ddirector of the Bar shall cause notices of

570

suspension, disbarment, resignation with discipline pending, transfer to disability status

571

and petitions for reinstatements or readmissions to be published in the Utah Bar Journal

572

and in a newspaper of general circulation in each judicial district within this state Utah in

573

which the respondent maintained an office for the practice of law.

574

575

transmittransmittal of notices of suspension, disbarment, resignation with discipline

576

pending, transfer to or from disability status, reinstatement, or readmission and transfer

577

to or from disability status to all state and federal courts in this state Utah.

578

Rule 1714-517. Additional rules of procedure.

579

(a) Governing rules. Except as otherwise provided in these rules this article, the

580

Utah Rules of Civil Procedure, the Utah Rules of Appellate Procedure governing civil

581

appeals, and the Utah Rules of Evidence, apply in formal discipline actions and

582

disability actions.

583

(b) Standard of proof. Formal complaints of misconduct, petitions for reinstatement

584

and readmission, and petitions for transfer to and from disability status shall be

585

established by a preponderance of the evidence. Motions for interim suspension

586

pursuant to Rule 1814-518 shall be established by clear and convincing evidence.

Effective: November 1, 2006

587

588

to disability status is on the OPC. The burden of proof in proceedings seeking a reversal

589

of a screening panel recommendation of discipline, or seeking reinstatement,

590

readmission, or transfer from disability status is on the respondent.

591

(d) Related pending litigation. Upon a showing of good cause, a formal action or a

592

disability proceeding may be stayed because of substantial similarity to the material

593

allegations of a pending criminal, civil, or disciplinary action.

594

(e) The complainant's actions. Neither unwillingness of the complainant to prosecute

595

an informal or formal complaint, nor settlement or compromise between the complainant

596

and the respondent, nor restitution by the respondent, shall, in and of itself, justify

597

abatement of disciplinary proceedings.

598

(f) Informal and formal complaints against OPC counsel, Committee members and

599

bBoard of commissioners. An informal complaint filed against OPC counsel, members

600

of the Committee, or a member of the Board of Commissioners, which, upon

601

consideration of all factors, is determined by a chair of the assigned screening panel

602

(which assignment shall be made by the Committee chair) to be frivolous, unintelligible,

603

barred by the statute of limitations, is being or should have been addressed in another

604

more appropriate forum, unsupported by fact or which does not raise probable cause of

605

any unprofessional conduct, shall be dismissed by the screening panel chair without

606

hearing by a screening panel. The chair of the screening panel shall notify the

607

complainant of the dismissal stating the reasons therefor. The complainant may appeal

608

a dismissal by the chair of the screening panel to the Committee chair within fifteen (15)

609

days after notification of the dismissal is mailed. Upon appeal, the Committee chair shall

610

conduct a de novo review of the file, and either affirm or reverse the dismissal. If the

611

screening panel chair determines not to dismiss the complaint, or the Committee chair

612

reverses the dismissal on appeal, the Committee chair shall request that the Supreme

613

Court appoint a special counsel to present the case, and if necessary, a special

614

screening panel. In all other respects, the matter shall proceed in accordance with these

615

rules this article. Special counsel shall be a lawyer outside of the OPC appointed by the

616

Supreme Court to act as counsel for investigation and prosecution of the disciplinary

Effective: November 1, 2006

617

complaint. Special counsel shall notice notify OPC counsel of the results of the

618

investigation.

619

Rule 1814-518. Interim suspension for threat of harm.

620

(a) Transmittal of evidence. Upon receipt of sufficient evidence demonstrating that a

621

lawyer subject to the disciplinary jurisdiction of the Supreme Court poses a substantial

622

threat of irreparable harm to the public and has either committed a violation of the Rules

623

of Professional Conduct or is under a disability as herein defined, OPC counsel shall file

624

a petition for interim suspension in the district court and give notice in accordance with

625

Utah Rule of Civil Procedure 65A. An action is commenced under this rule when the

626

petition for interim suspension is filed.

627

(b) Immediate interim suspension. After conducting a hearing on the petition, the

628

district court may enter an order immediately suspending the respondent pending final

629

disposition of a disciplinary proceeding predicated upon the conduct causing the harm,

630

or may order such other action as deemed appropriate. In the event If an order is

631

entered:

632

633

634

635

636

637

(b)(1) the district court may appoint a trustee, pursuant to Rule 2714-527, to protect

the interests of the respondent's clients; and

(b)(2) the OPC may file a formal complaint in the district court without presenting the

matter to a screening panel.

comply with the notice requirements in Rule 26 14-526 as ordered by the district court.

638

(d) Motion for dissolution of interim suspension. On two (2) days notice to OPC

639

counsel, a respondent suspended pursuant to paragraph (b) may appear and move for

640

dissolution or modification of the order of suspension, and in that event, the motion shall

641

be heard and determined as expeditiously as the ends of justice require.

642

Rule 1914-519. Lawyers convicted of a crime.

643

(a) Transmittal of judgment of conviction. The court in which a lawyer is convicted of

644

any felony whatsoever or any misdemeanor which reflects adversely on the lawyer's

645

honesty, trustworthiness or fitness as a lawyer shall, within thirty (30) days after the

646

conviction, transmit a certified copy of the judgment of conviction to OPC counsel.

Effective: November 1, 2006

647

(b) Motion for interim suspension. Upon being advised that a lawyer has been

648

convicted of a crime which reflects adversely on the lawyer's honesty, trustworthiness or

649

fitness as a lawyer, OPC counsel shall determine whether the crime warrants interim

650

suspension. Upon a determination that the crime warrants interim suspension, OPC

651

counsel shall file a formal complaint, accompanied by the certified copy of the judgment

652

of conviction, and concurrently file a motion for immediate interim suspension. An action

653

is commenced under this rule when both the petition for interim suspension and the

654

formal complaint are filed. The respondent may assert any jurisdictional deficiency

655

which establishes that the interim suspension may not properly be ordered, such as that

656

the crime does not reflect adversely on the respondent's honesty, trustworthiness or

657

fitness as a lawyer, or that the respondent is not the individual convicted. The

658

respondent is not entitled to an evidentiary hearing but may request an informal hearing.

659

If an order for interim suspension is not obtained, the formal complaint shall be

660

dismissed and OPC counsel shall process the matter as it does any other information

661

coming to the attention of the OPC.

662

663

upon proof that the respondent has been convicted of a crime which reflects adversely

664

on the respondent's honesty, trustworthiness or fitness as a lawyer, regardless of the

665

pendency of any appeal.

666

667

(d) Dissolution of interim suspension. Interim suspension may be dissolved as

provided in Rule 18(d)14-518(d).

668

(e) Conviction as conclusive evidence. Except as provided in paragraph (b), a

669

certified copy of a judgment of conviction constitutes conclusive evidence that the

670

respondent committed the crime.

671

(f) Automatic reinstatement from interim suspension upon reversal of conviction. If a

672

respondent suspended solely under the provisions of paragraph (c) demonstrates that

673

the underlying conviction has been reversed or vacated, the order for interim

674

suspension shall be vacated and the respondent placed on active status. The vacating

675

of the interim suspension shall not automatically terminate any disciplinary proceeding

Effective: November 1, 2006

676

then pending against the respondent, the disposition of which shall be determined on

677

the basis of the available evidence other than conviction.

678

(g) Notice to clients and other of interim suspension. An interim suspension under

679

this rule shall constitute a suspension of the respondent for the purpose of Rule 2614-

680

526.

681

Rule 2014-520. Discipline by consent.

682

(a) Discipline by consent prior to filing of formal complaint. A respondent against

683

whom an informal complaint has been filed may, prior to the filing of a formal complaint,

684

tender a proposal for discipline by consent, including a conditional admission to the

685

informal complaint or portions thereof in exchange for a disciplinary sanction and final

686

disposition of the informal complaint. The proposal shall include a waiver of right to a

687

screening panel hearing. The proposal shall be submitted to OPC counsel who shall

688

forward the proposal to the Committee chair with a recommendation in favor of or

689

opposed to the proposal, and a statement of the basis for such recommendation. If the

690

proposal is approved by the Committee chair, the sanction shall be imposed as

691

provided in this rule. If the proposal is rejected by the Committee chair, the proposal and

692

admission shall be withdrawn and cannot be used against the respondent in

693

subsequent proceedings.

694

(b) Discipline by consent after filing of formal complaint. A respondent against whom

695

a formal complaint has been filed may tender a conditional admission to the formal

696

complaint or to a particular count thereof in exchange for a stated form of discipline and

697

final disposition of the formal complaint. The proposal shall be submitted to OPC

698

counsel, who shall then forward the proposal to the district court with a recommendation

699

favoring or opposing the proposal and a statement of the basis for such

700

recommendation. The district court shall either approve or reject the proposal. If the

701

district court approves the proposal and the stated form of discipline includes public

702

discipline, it shall enter the appropriate disciplinary order as provided in paragraph (d). If

703

the district court rejects the proposal, the proposal and conditional admission shall be

704

withdrawn and cannot be used against the respondent in subsequent proceedings.

Effective: November 1, 2006

705

706

predicated upon:

707

(c)(1) the informal complaint and any NOIC if no formal complaint has been filed;

708

(c)(2) the formal complaint, if filed;

709

(c)(3) the approved proposal for discipline by consent; and

710

(c)(4) an affidavit of consent by the respondent to be disciplined.

711

(d) Affidavit of consent. A respondent whose proposal for discipline by consent has

712

been approved as provided in this rule, shall submit an affidavit to the Committee chair

713

or the district court as appropriate, consenting to the imposition of the approved

714

disciplinary sanction and affirming that:

715

(d)(1) the consent is freely and voluntarily entered;

716

(d)(2) the respondent is not acting under coercion or duress;

717

(d)(3) the respondent is fully aware of the implications of submitting the consent;

718

(d)(4) the respondent is aware that there is presently pending an investigation into,

719

or proceeding involving, allegations that there exist grounds for discipline, the nature of

720

which shall be specifically set forth;

721

722

(d)(5) for purposes of disciplinary proceedings, the respondent acknowledges that

the material facts so alleged are true; and

723

(d)(6) the respondent submits consent because the respondent knows that if an

724

informal or formal complaint were predicated upon the matters under investigation were

725

filed, or the pending formal charges were prosecuted, the respondent could not

726

successfully defend against the charges upon which the discipline is based.

727

Rule 2114-521. Resignation with discipline pending.

728

(a) A respondent may resign from the Bar, prior to the adjudication of a pending

729

complaint, only with the consent of the Supreme Court and upon such terms as the

730

Supreme Court may impose for the protection of the public.

731

(b) The respondent shall submit a sworn petition:

732

(b)(1) admitting for purposes of the disciplinary proceedings the facts upon which the

733

734

allegations of misconduct are based;

(b)(2) admitting that the facts constitute grounds for discipline;

Effective: November 1, 2006

735

736

737

738

(b)(3) stating that the respondent's resignation is freely and voluntarily tendered and

that it is submitted without coercion or duress;

(b)(4) verifying that the respondent is fully aware of the implications of submitting the

resignation;

739

(b)(5) acknowledging that the discipline matter, the petition and the sanction shall be

740

available to the public and that a notice of the resignation shall be published in the Utah

741

Bar Journal;

742

743

(b)(6) agreeing to comply with these Rrules, including Rule 26(b)14-526(b) regarding

notice to clients and return of clients' property; and

744

(b)(7) agreeing to comply with other orders of the Supreme cCourt.

745

746

within twenty (20) days, object to the petition. If OPC counsel consents to the petition,

747

the Supreme Court shall review the petition and enter an appropriate order. If OPC

748

counsel files a timely objection, the matter shall be set for hearing in the district court.

749

Within ten (10) days after the hearing, the district court's findings of fact and conclusions

750

of law shall be transmitted to the Supreme Court for review and the entry of an

751

appropriate order.

752

(d) If the Supreme Court accepts the resignation, it shall enter an order specifying

753

the effective date of the resignation. The order may include additional or alternative

754

terms and conditions deemed appropriate, including conditions precedent to

755

readmission.

756

(e) A respondent whose resignation is accepted must comply with Rule 25 14-525

757

and may not apply for readmission until five (5) years after the effective date of the

758

resignation unless the Supreme Court orders otherwise in the order accepting the

759

resignation.

760

Rule 2214-522. Reciprocal discipline.

761

(a) Duty to notify OPC counsel of discipline. Upon being publicly disciplined by

762

another court, another jurisdiction, or a regulatory body having disciplinary jurisdiction, a

763

lawyer admitted to practice in this state Utah shall within thirty (30) days inform the OPC

764

of the discipline. Upon notification from any source that a lawyer within the jurisdiction of

Effective: November 1, 2006

765

the Supreme Court has been publicly disciplined by another court, another jurisdiction,

766

or a regulatory body having disciplinary jurisdiction, OPC counsel shall obtain a certified

767

copy of the disciplinary order.

768

(b) Notice served upon lawyer. Upon receipt of a certified copy of an order

769

demonstrating that a lawyer admitted to practice in this state Utah has been publicly

770

disciplined by another court, another jurisdiction, or a regulatory body having

771

disciplinary jurisdiction, OPC counsel shall forthwith issue a notice directed to the lawyer

772

containing:

773

(b)(1) a copy of the order from the other court, jurisdiction or regulatory body; and

774

(b)(2) a notice giving the lawyer the right to inform OPC counsel, within thirty (30)

775

days from service of the notice, of any claim by the lawyer predicated upon the grounds

776

set forth in paragraph (d), that the imposition of the equivalent discipline in this state

777

Utah would be unwarranted, and stating the reasons for that claim.

778

779

imposed in the other court, jurisdiction or regulatory body has been stayed, any

780

reciprocal discipline imposed in this state Utah shall be deferred until the stay expires.

781

(d) Discipline to be imposed. Upon the expiration of thirty (30) days from service of

782

the notice pursuant to paragraph (b), the district court shall take such action as may be

783

appropriate to cause the equivalent discipline to be imposed in this jurisdiction, unless it

784

clearly appears upon the face of the record from which the discipline is predicated that:

785

786

(d)(1) the procedure was so lacking in notice or opportunity to be heard as to

constitute a deprivation of due process;

787

(d)(2) the imposition of equivalent discipline would result in grave injustice; or

788

(d)(3) the misconduct established warrants substantially different discipline in this

789

state Utah or is not misconduct in this jurisdiction.

790

If the district court determines that any of these elements exist, it shall enter such

791

other order as it deems appropriate. The burden is on the respondent to demonstrate

792

that the imposition of equivalent discipline is not appropriate.

793

(e) Conclusiveness of adjudication in other jurisdictions. Except as provided in

794

paragraphs (c) and (d) above, a final adjudication of the other court, jurisdiction or

Effective: November 1, 2006

795

regulatory body that a respondent has been guilty of misconduct shall establish

796

conclusively the misconduct for purposes of a disciplinary proceeding in this state Utah.

797

Rule 2314-523. Proceedings in which lawyer is declared to be incompetent or

798

alleged to be incapacitated.

799

(a) Involuntary commitment or adjudication of incompetency. If a lawyer has been

800

judicially declared incompetent or is involuntarily committed on the grounds of

801

incompetency, OPC counsel, upon proper proof of the fact, shall file a petition with the

802

district court for the immediate transfer of the lawyer to disability status for an indefinite

803

period until further order of the district court. A copy of the order shall be served by OPC

804

counsel upon the lawyer or the lawyer's guardian or, if no guardian or legal

805

representative has been appointed, upon the director of the institution to which the

806

lawyer has been committed.

807

(b) Inability to properly defend. If a lawyer alleges in the course of a disciplinary

808

proceeding an inability to assist in the defense due to mental or physical incapacity, the

809

district court shall immediately transfer the lawyer to disability status pending

810

determination of the incapacity.

811

(b)(1) If the district court determines the claim of inability to defend is valid, the

812

disciplinary proceeding shall be deferred and the lawyer retained on disability status

813

until the district court subsequently considers a petition for transfer of the lawyer to

814

active status. If the district court considering the petition for transfer to active status

815

determines the petition should be granted, the interrupted disciplinary proceedings may

816

resume.

817

818

(b)(2) If the district court determines the claim of incapacity to defend to be invalid,

the disciplinary proceeding shall resume.

819

820

or mental condition which adversely affects the lawyer's ability to practice law shall be

821

investigated, and where if warranted, shall be the subject of formal proceedings to

822

determine whether the lawyer shall be transferred to disability status. Hearings shall be

823

conducted in the same manner as disciplinary proceedings, except that all of the

824

proceedings shall be confidential. The district court shall provide for such notice to the

Effective: November 1, 2006

825

lawyer of proceedings in the matter as it deems proper and advisable and may appoint

826

counsel to represent the lawyer if the lawyer is without adequate representation. The

827

district court may take or direct whatever action it deems necessary or proper to

828

determine whether the lawyer is so incapacitated, including the examination of the

829

lawyer by qualified experts designated by the district court. If, upon due consideration of

830

the matter, the district court concludes that the lawyer is incapacitated from continuing

831

to practice law, it shall enter an order transferring the lawyer to disability status for an

832

indefinite period and until the further order of the district court. Any pending disciplinary

833

proceedings against the lawyer shall be held in abeyance.

834

(d) Reinstatement from disability status.

835

(d)(1) Court order. No lawyer transferred to disability status may resume active

836

status except by order of the district court.

837

(d)(2) Petition. Any lawyer transferred to disability status shall be entitled to petition

838

for transfer to active status once a year, or at whatever shorter intervals the district court

839

may direct in the order transferring the lawyer to disability status or any modifications

840

thereof.

841

(d)(3) Examination. Upon the filing of a petition for transfer to active status, the

842

district court may take or direct whatever action it deems necessary or proper to

843

determine whether the disability has been removed, including a direction for an

844

examination of the lawyer by qualified experts designated by the district court. In its

845

discretion, the district court may direct that the expense of the examination be paid by

846

the lawyer.

847

(d)(4) Waiver of privilege. With the filing of a petition for reinstatement to active

848

status, the lawyer shall be required to disclose the name of each psychiatrist,

849

psychologist, physician or other health care provider and hospital or other institution by

850

whom or in which the lawyer has been examined or treated related to the disability since

851

the transfer to disability status. The lawyer shall furnish written consent to each listed

852

provider to divulge information and records relating to the disability if requested by the

853

district court or district court's appointed experts.

Effective: November 1, 2006

854

(d)(5) Learning in law; bBar eExamination. The district court may also direct that the

855

lawyer establish proof of competence and learning in law, which proof may include

856

certification by the Bar of successful completion of an examination for admission to

857

practice.

858

(d)(6) Granting petition for transfer to active status. The district court shall grant the

859

petition for transfer to active status upon a showing by clear and convincing evidence

860

that the disability has been removed.

861

(d)(7) Judicial declaration of competence. If a lawyer transferred to disability status

862

on the basis of a judicial determination of incompetence is subsequently judicially

863

declared to be competent, the district court may dispense with further evidence that the

864

lawyer’s disability has been removed and may immediately order the lawyer’s

865

reinstatement to active status upon terms as are deemed proper and advisable.

866

Rule 2414-524. Reinstatement following a suspension of six months or less.

867

A respondent who has been suspended for six (6) months or less pursuant to

868

disciplinary proceedings shall be reinstated at the end of the period of suspension upon

869

filing with the district court and serving upon OPC counsel an affidavit stating that the

870

respondent has fully complied with the requirements of the suspension order and that

871

the respondent has fully reimbursed the Bar’s Client Security Lawyers’ Fund for Client

872

Protection for any amounts paid on account of the respondent’s conduct. Within ten (10)

873

days, OPC counsel may file an objection and thereafter the district court shall conduct a

874

hearing.

875

876

Rule 2514-525. Reinstatement following a suspension of more than six months;

readmission.

877

(a) Generally. A respondent suspended for more than six (6) months or a disbarred

878

respondent shall be reinstated or readmitted only upon order of the district court. No

879

respondent may petition for reinstatement until three (3) months before the period for

880

suspension has expired. No respondent may petition for readmission until five (5) years

881

after the effective date of disbarment. A respondent who has been placed on interim

882

suspension and is then disbarred for the same misconduct that was the ground for the

Effective: November 1, 2006

883

interim suspension may petition for readmission at the expiration of five (5) years from

884

the effective date of the interim suspension.

885

(b) Petition. A petition for reinstatement or readmission shall be verified, filed with

886

the district court, and shall specify with particularity the manner in which the respondent

887

meets each of the criteria specified in paragraph (e) or, if not, why there is otherwise

888

good and sufficient reason for reinstatement or readmission. With specific reference to

889

paragraph (e)(4), prior to the filing of a petition for readmission, the respondent must

890

receive a report and recommendation from the Bar’s Character and Fitness Committee.

891

In addition to receiving the report and recommendation from the Character and Fitness

892

Committee, the respondent must satisfy all other requirements as set forth in the Bar’s

893

Rules Governing Article 7, Admissions. Prior to or as part of the respondent's petition,

894

the respondent may request modification or abatement of conditions of discipline,

895

reinstatement or readmission.

896

897

counsel.

898

(d) Publication of notice of petition. At the time a respondent files a petition for

899

reinstatement or readmission, OPC counsel shall publish a notice of the petition in the

900

Utah Bar Journal. The notice shall inform members of the Bar about the application for

901

reinstatement or readmission, and shall request that any individuals file notice of their

902

opposition or concurrence with the district court within thirty (30) days of the date of

903

publication. In addition, OPC counsel shall notify each complainant in the disciplinary

904

proceeding that led to the respondent's suspension or disbarment that the respondent is

905

applying for reinstatement or readmission, and shall inform each complainant that the

906

complainant has thirty (30) days from the date of mailing to raise objections to or to

907

support the respondent's petition. Notice shall be mailed to the last known address of

908

each complainant in OPC counsel's records.

909

(e) Criteria for reinstatement and readmission. A respondent may be reinstated or

910

readmitted only if the respondent meets each of the following criteria, or, if not, presents

911

good and sufficient reason why the respondent should nevertheless be reinstated or

912

readmitted:.

Effective: November 1, 2006

913

914

915

916

(e)(1) The respondent has fully complied with the terms and conditions of all prior

disciplinary orders except to the extent they are abated by the district court.

(e)(2) The respondent has not engaged nor attempted to engage in the unauthorized

practice of law during the period of suspension or disbarment.

917

(e)(3) If the respondent was suffering from a physical or mental disability or

918

impairment which was a causative factor of the respondent's misconduct, including

919

substance abuse, the disability or impairment has been removed. Where substance

920

abuse was a causative factor in the respondent's misconduct, the respondent shall not

921

be reinstated or readmitted unless:

922

923

924

925

926

927

(e)(3)(A) the respondent has recovered from the substance abuse as demonstrated

by a meaningful and sustained period of successful rehabilitation;

(e)(3)(B) the respondent has abstained from the use of the abused substance and

the unlawful use of controlled substances for the preceding six (6) months; and

(e)(3)(C) the respondent is likely to continue to abstain from the substance abused

and the unlawful use of controlled substances.

928

(e)(4) Notwithstanding the conduct for which the respondent was disciplined, the

929

respondent has the requisite honesty and integrity to practice law. In readmission

930

cases, the respondent must appear before the Bar's Character and Fitness Committee

931

and cooperate in its investigation of the respondent. A copy of the Character and

932

Fitness Committee's report and recommendation shall be provided to the OPC and

933

forwarded to the district court assigned to the petition after the respondent files a

934

petition.

935

936

937

938

(e)(5) The respondent has kept informed about recent developments in the law and

is competent to practice.

(e)(6) In cases of suspensions for one (1) year or more, the respondent shall be

required to pass the Multistate Professional Responsibility Examination.

939

(e)(7) In all cases of disbarment, the respondent shall be required to pass the

940

student applicant bBar eExamination and the Multistate Professional Responsibility

941

Examination.

Effective: November 1, 2006

942

943

944

945

946

947

(e)(8) The respondent has fully reimbursed the Bar’s Client Security Lawyers’ Fund

for Client Protection for any amounts paid on account of the respondent’s conduct.

(f) Review of petition. Within sixty (60) days after receiving a respondent's petition for

reinstatement or readmission, OPC counsel shall either:

(f)(1) advise the respondent and the district court that OPC counsel will stipulate not

object to the respondent's reinstatement or readmission; or

948

(f)(2) file a written objection to the petition.

949

(g) Hearing; report. If an objection is filed by OPC counsel, the district court, as soon

950

as reasonably practicable and within a target date of 90 days of the filing of the petition,

951

shall, within ninety (90) days of the filing of the petition, conduct a hearing at which the

952

respondent shall have the burden of demonstrating by a preponderance of the evidence

953

that the respondent has met each of the criteria in paragraph (e) or, if not, that there is

954

good and sufficient reason why the respondent should nevertheless be reinstated or

955

readmitted. The district court shall enter its findings and order. If no objection is filed by

956

OPC counsel, the district court shall review the petition without a hearing and enter its

957

findings and order.

958

(h) Successive petitions. Unless otherwise ordered by the district court, no

959

respondent shall apply for reinstatement or readmission within one (1) year following an

960

adverse judgment upon a petition for reinstatement or readmission.

961

(i) Conditions of reinstatement or readmission. The district court may impose

962

conditions on a respondent's reinstatement or readmission if the respondent has met

963

the burden of proof justifying reinstatement or readmission, but the district court

964

reasonably believes that further precautions should be taken to ensure that the public

965

will be protected upon the respondent's return to practice.

966

(j) Reciprocal reinstatement or readmission. If a respondent has been suspended or

967

disbarred solely on the basis of discipline imposed by another court, another jurisdiction,

968

or a regulatory body having disciplinary jurisdiction, and if the respondent is later

969

reinstated or readmitted by that court, jurisdiction or regulatory body, the respondent

970

may petition for reciprocal reinstatement or readmission in this state Utah. The

971

respondent shall file with the district court and serve upon OPC counsel a petition for

Effective: November 1, 2006

972

reciprocal reinstatement or readmission, as the case may be. The petition shall include

973

a certified or otherwise authenticated copy of the order of reinstatement or readmission

974

from the other court, jurisdiction or regulatory body. Within twenty (20) days of service of

975

the petition, OPC counsel may file an objection thereto based solely upon substantial

976

procedural irregularities. If an objection is filed, the district court shall hold a hearing and

977

enter its finding and order. If no objection is filed, the district court shall enter its order

978

based upon the petition.

979

980

Rule 2614-526. Notice of disability or suspension; return of clients' property; refund

of unearned fees.

981

(a) Effective date of order; winding up affairs. Each order that imposes disbarment or

982

suspension is effective thirty (30) days after the date of the order, or at such other time

983

as the order provides. Each order that transfers a respondent to disability status is

984

effective immediately upon the date of the order, unless the order otherwise provides.

985

After the entry of any order of disbarment, suspension, or transfer to disability status,

986

the respondent shall not accept any new retainer or employment as a lawyer in any new

987

case or legal matter; provided, however, that during any period between the date of

988

entry of an order and its effective date, the respondent may, with the consent of the

989

client after full disclosure, wind up or complete any matters pending on the date of entry

990

of the order.

991

(b) Notice to clients and others. In every case in which a respondent is disbarred or

992

suspended for more than six (6) months, the respondent shall, within twenty (20) days

993

of the entry of the order, accomplish the following acts:

994

(b)(1) Nnotify each client and any co-counsel in every pending legal matter, litigation

995

and non-litigation, that the respondent has been disbarred or suspended from the

996

practice of law and is disqualified from further participation in the matter;

997

(b)(2) Nnotify each client that, in the absence of co-counsel, the client should obtain

998

a new lawyer, calling attention to the urgency to seek new counsel, particularly in

999

pending litigation;

1000

(b)(3) Ddeliver to every client any papers or other property to which the client is

1001

entitled or, if delivery cannot reasonably be made, make arrangements satisfactory to

Effective: November 1, 2006

1002

the client or co-counsel of a reasonable time and place where papers and other

1003

property may be obtained, calling attention to any urgency to obtain the same;

1004

1005

(b)(4) Rrefund any part of any fee paid in advance that has not been earned as of

the effective date of the discipline;

1006

(b)(5) Iin each matter pending before a court, agency or tribunal, notify opposing

1007

counsel or, in the absence of counsel, the adverse party, of the respondent's

1008

disbarment or suspension and consequent disqualification to further participate as a

1009

lawyer in the matter;

1010

1011

(b)(6) Ffile with the court, agency or tribunal before which any matter is pending a

copy of the notice given to opposing counsel or to an adverse party; and

1012

(b)(7) Wwithin ten (10) days after the effective date of disbarment or suspension, file

1013

an affidavit with OPC counsel showing complete performance of the foregoing

1014

requirements of this rule. The respondent shall keep and maintain for inspection by

1015

OPC counsel all records of the steps taken to accomplish the requirements of this rule.

1016

1017

disbarment or suspension shall not be rendered invalid merely because of the order of

1018

discipline.

1019

(d) Other notice. If a respondent is suspended for six (6) months or less, the district

1020

court may impose conditions similar to those set out in paragraph (b). In any public

1021

disciplinary matter, the district court may also require the issuance of notice to others as

1022

it deems necessary to protect the interests of clients or the public.

1023

(e) Compliance. Substantial compliance with the provisions of paragraphs (a), (b)

1024

and (d) shall be a precondition for reinstatement or readmission. Willful failure to comply

1025

with paragraphs (a), (b) and (d) shall constitute contempt of court and may be punished

1026

as such or by further disciplinary action.

1027

1028

Rule 2714-527. Appointment of trustee to protect clients' interest when lawyer

disappears, dies, is suspended or disbarred, or is transferred to disability status.

1029

(a) Protective appointment of trustee. If a lawyer has disappeared or died, or if a

1030

respondent has been suspended or disbarred or transferred to disability status, and if

1031

there is evidence that the lawyer or respondent has not complied with the provisions of

Effective: November 1, 2006

1032

Rule 26 14-526 and no partner, executor, or other responsible party capable of

1033

conducting the lawyer's or respondent's affairs is known to exist, a district judge of the

1034

judicial district in which the lawyer or respondent maintained a principal office, upon the

1035

request of OPC counsel, may appoint a trustee to inventory the lawyer's or respondent's

1036

files, notify the lawyer's or respondent's clients, distribute the files to the clients, return

1037

unearned fees and other funds, and take any additional action authorized by the judge

1038

making the appointment.

1039

(b) Confidentiality. No attorney-client relationship exists between the client and the

1040

trustee except to the extent necessary to maintain and preserve the confidentiality of the

1041

client. The trustee shall not disclose any information contained in the files so inventoried

1042

without the consent of the client to whom such files relate, except as necessary to carry

1043

out the order of the court making the appointment.

1044

1045

Rule 13 14-513 of these Rules.

1046

Rule 2814-528. Appeal by complainant.

1047

The complainant shall not have a right of appeal, except as provided in Rule

1048

10(a)(6)14-510(a)(6) to appeal a dismissal of an informal complaint.

1049

Rule 2914-529. Statute of limitations.

1050

Proceedings under these rules this article shall be commenced within four (4) years

1051

of the discovery of the acts allegedly constituting a violation of the Rules of Professional

1052

Conduct.

1053

Rule 3014-530. Costs.

1054

(a) Assessment. The prevailing party in a proceeding on a formal complaint may be

1055

awarded judgment for costs in accordance with Rule 54(d) of the Utah Rules of Civil

1056

Procedure.

1057

(b) Offer of discipline by consent. OPC counsel shall not be deemed to have

1058

prevailed on any count in the formal complaint unless the sanction imposed exceeds

1059

any sanction to which the respondent conditionally consented under Rule 20(b)14-

1060

520(b) prior to the hearing.

Effective: November 1, 2006

1061

1062

to paragraph (d).

1063

(d) Trusteeship. Court-appointed trustees, including cases in which OPC is

1064

appointed the trustee, may collect costs for notification to the respondent’s clients,

1065

including charges for copying, postage, publication and fees from money collected.

1066

1067

Rule 3114-531. Noncompliance with child support order, child visitation order,

subpoena or order relating to paternity or child support proceeding.

1068

(a) Upon entry of an order holding a lawyer in contempt for the lawyer's

1069

noncompliance with a child support order, child visitation order, or a subpoena or order

1070

relating to a paternity or child support proceeding, a district court may suspend the

1071

lawyer's license to engage in the practice of law consistent with applicable law (currently

1072

Utah Code section 78-32-17) and, if suspended, shall also impose conditions of

1073

reinstatement.

1074

1075

(b) In the event If a district court suspends a lawyer's license to engage in the

practice of law, the court shall provide a copy of the order to the OPC.

1076

Rule 3214-532. Failure to answer charges.

1077

(a) Failure to answer. If having received actual notice of the charges filed, the

1078

respondent fails to answer the charges within twenty (20) days, the respondent shall be

1079

deemed to have admitted the factual allegations.

1080

(b) Failure to appear. If the respondent, having been ordered by the Committee to

1081

appear and having received actual notice of that order, fails to appear, the respondent

1082

shall have been deemed to have admitted the factual allegations which were the subject

1083

of such appearance. The Committee shall not, absent good cause, continue or delay

1084

proceedings because of the respondent’s failure to appear.

1085

1086

above shall expressly state the consequences, as specified above, of the respondent's

1087

failure to answer or appear.

1088

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.